Chief Justice William H. Rehnquist: We'll hear argument first this morning on No. 87-1165, California v. the United States.

Mr. Muys, you may proceed whenever you're ready.

Mr. Muys: Mr. Chief Justice, and may it please the Court:

This case is the latest chapter in the ten-year effort of the states of California and Arizona and several of their public agencies to obtain a judicial determination of the disputed boundaries of the Fort Mojave, Colorado River, and Fort Yuma Indian Reservations on the lower Colorado River in order to remove a cloud on the title to 104,000 acre-feet of water, which is presently being used by the Metropolitan Water District of Southern California, to serve the needs of over 500,000 citizens in its service area.

The water rights of the three reservations were originally adjudicated by this Court in 1963 in Arizona against California I.

The United States subsequently sought additional water for the three reservations, and in 1983 in this Court's decision in Arizona against California II the Court rejected the United States' claims for the additional 104,000 acre-feet of water because it was based on claims stemming from the Secretary of the Interior's subsequent ex parte reinterpretation and expansion of the boundaries of the three reservations without affording the state parties notice or an opportunity to participate.

And none of those decisions ever received any judicial review.

The state parties had urged in 1983 that this Court decide the boundary disputes.

But the Court directed us to reinstitute, reactivate the then-pending suit in the Southern District of California, which the state parties had brought to determine the disputed boundaries.

Unidentified Justice: Was that an APA action?

Was that--

Mr. Muys: Yes, we had sought review under Section 702--

Unidentified Justice: --Review the decision of the Secretary?

Mr. Muys: --To review the boundary decisions of the Secretary under Section 702 of the APA.

Unidentified Justice: Whom do you represent?

Mr. Muys: The Petitioners, Metropolitan Water District, California, Coachella in the State of Arizona.

Unidentified Justice: So you represent the state--

Mr. Muys: Yes.

The state parties.

Unidentified Justice: --And does the state intervene?

Mr. Muys: The state says, as the Court directed, the States of California and Arizona were added as parties to the suit originally brought by Metropolitan and Coachella Water Districts.

After the case was reactivated, the United States withdrew its defense of sovereign immunity.

Taking up the Fort Mojave dispute first, the District Court voided the Secretary's boundary order, finding it in excess of his statutory authority, and as depriving, having deprived Metropolitan of due process.

Unidentified Justice: This was tried in the Southern District of California?

Mr. Muys: Yes, in San Diego.

The United States and the tribes were granted interlocutory appeals by the Ninth Circuit on those two substantive issues, but when they reached the Ninth Circuit they resurrected their previously-abandoned sovereign immunity in standing defenses before the Ninth Circuit.

The Ninth Circuit held that the state party suit was essentially a suit to quiet title, to Indian trust lands, and therefore barred by the Quiet Title Act.

It also held that even if our suit were viewed as essentially a water rights suit, as we contend, that nevertheless the McCarran Amendment consent to suit provisions were inapplicable, because we were not seeking a complete adjudication of all the water rights in the lower Colorado River.

And thirdly, it strongly indicated, but didn't decide, that Metropolitan lacked standing.

Let me emphasize what the state parties are seeking in their action.

As we indicated to this Court in 1983, and as it noted in its Arizona against California II opinion, we are not seeking to diminish or divest in any way the United States ownership interest of the disputed lands, nor are we seeking to disrupt the United States commitments to the tribes in setting aside those reservations.

All we want is a fair judicial determination of what the appropriate boundaries of those reservations are so that we can delineate those federal public lands that don't have a water right from those Indian trust lands that may under this Court's decision, Arizona against California I, have an implied winner's reserve water right.

Unidentified Justice: You got thrown out on sovereign immunity grounds?

Mr. Muys: Yes.

Unidentified Justice: And... but the District Court had, had, dealt with all of the reservations?

Mr. Muys: No.

We started with Fort Mojave first.

We were going to do them in sequence.

We did Fort Mojave--

Unidentified Justice: And you won, you won--

Mr. Muys: --Well, we won in that the order was set aside, but the Court did not reach the merits of the boundary dispute, set aside the order, set the matter for trial de novo, under this Court's exception in Overton Park, because it found the Secretary's boundary determination essentially adjudicatory in nature and woefully inadequate as far as the fact-finding involved.

So we were set to go to trial, but interlocutory appeal intervened.

Unidentified Justice: --So you would want de novo determination in the District Court?

Mr. Muys: That's what we had asked for, and that's what the District Court granted.

That issue was never reached by the Ninth Circuit.

They threw us out on the resurrected sovereign immunity defense by United States.

Unidentified Justice: When did the United States resurrect that, what date?

Do you remember?

Mr. Muys: Well, in their briefs before the Ninth Circuit, it seems to me it was in the fall of, or early, fall of 1986 or early 1987.

Unidentified Justice: Thank you.

Mr. Muys: They had earlier amended their motion to dismiss our District Court action, as you recall, after the Court admonished the Deputy Solicitor General Noroargen about those defenses that had been raised, and made some comments that they had been raised in the decision, Arizona against California II.

The government amended its motion to dismiss before the District Court and said, we think that where the suit seeks only the determination of the boundaries and doesn't attempt to affect title, the action may go forward under the APA.

After we won, they had a change of heart.

Unidentified Justice: Mr. Muys, how would your position alter the government's relationship to the acreage in question, if you were successful?

Mr. Muys: The government would still own it.

It would own it now in unrestricted fee title.

It now claims that it holds it in trust for the tribes.

But the underlying federal ownership would not change, but the relationship to the tribes would change, at least temporarily.

If we prevail on the merits, and our view of the boundaries prevails, why those lands would immediately be back in public land status.

But there's nothing to prevent the United States from rededicating them in trust to the tribes for beneficial use on the land.

The big difference would be those lands would no longer have an implied water right dating back to the 19th century executive orders that the Secretary chose to reinterpret.

But they would have an implied water right, if any, dating from the later more current legislative or administrative action, rededicating them in trust purposes for the tribes.

Unidentified Justice: Did you object, Mr. Muys, to the government's change of position between the District Court and the Ninth Circuit?

Mr. Muys: No, we didn't, Your Honor.

We were convinced by the cases that jurisdiction is a matter that can be raised at any time.

We think there ought to be some kind of estopped at some point when the government leads us through these many hoops and changes position.

We go through a year or two of trial before the District Court and then after they lose they decide, well, maybe it wasn't such a good idea to concede that the APA applied rather than the Quiet Title Act.

But we didn't think we could prevail on that point.

Unidentified Justice: You're not making that argument here, are you?

I mean--

Mr. Muys: We're not trying to estop them by pleadings or say they--

Unidentified Justice: --Could I--

Mr. Muys: --I think it would be a good rule personally, but I think--

Unidentified Justice: --You mean the Solicitor General can decide whether the government will be liable rather than the Congress?

Mr. Muys: --That's right.

Our basic, our basic position on the sovereign immunity issue is twofold.

First, we say that the waiver of sovereign immunity that attended the United States intervention in Arizona against California I and the assertion of claims for these three reservations ought to be available to us in our present pending suit in the District Court, particularly since... the United States came in, they loaded this winner's claim on us, put a cloud in our title 30 years ago, and then it wasn't resolved by the Court in Arizona against California I.

It's still here.

We need certainty, we need the resolution, we think the tribes need a resolution.

We think that once the government put that claim at issue, it wasn't resolved, that waiver of sovereign immunity ought to follow that claim wherever it's prevailed, wherever we pursue it.

We just happen to be in a different federal court now.

We're not in this Court, we're down in the Southern District of California.

But we rely on the principle that Justice Holmes announced in the Thekia case in 1926.

It says, when the United States comes into court to assert a claim, it so far takes the position of a private suiter as to agree by implication that justice may be done with regard to the subject matter, the subject matter, not just in this Court or not just when the United States wants to pick a particular forum, but with respect to that subject matter that's the basis of their claim in which the United States lays before the courts for judicial resolution.

Unidentified Justice: And as you understand the effect of the Ninth Circuit decision, if that decision were affirmed, or if we had not granted cert, what would have been your next step?

Mr. Muys: We would have petitioned this Court in Arizona against California to reopen the decree and decide the boundary disputes as we had asked it to do in 1983.

In the 1983 decision the Court said, there will be time enough, if any of these defenses that the United States has pending down in the District Court are sustained and not reversed on judicial review, to come back to the Court and let the Court decide whether it's prepared to decide the boundary disputes in the original proceeding, Arizona against California.

Unidentified Justice: Which was the second time we refused to--

Mr. Muys: Second time.

Unidentified Justice: --We refused to decide it.

Mr. Muys: We're trying, Your Honor.

But we're not doing too well.

Unidentified Justice: Has there been any indication of when a water rights reallocation may take place, based on the boundary disputes here in question?

Mr. Muys: Well, the Court in Arizona against California II said the United States won't get any additional water for the three reservations until they come in and demonstrate that the boundaries have been finally determined, and either judicially reviewed by another court or lay before this Court for review.

So the ultimate impact of a water rights reallocation that gives us 104,000 acre-feet to the tribes, for sure, won't occur until some action by this Court in Arizona against California.

Now, why the tribes in the United States have been dilatory in trying to delay and avoid determination on the merits is something we don't understand.

We think it's in everyone's interest to get these matters decided.

Unidentified Justice: Well, your client didn't want to get it decided here either in 1983.

Mr. Muys: You're right.

Unidentified Justice: So it's kind of changed its mind now too.

Mr. Muys: Yes, we have.

A lot more people have flooded into southern California that are needing water.

Unidentified Justice: And your clients shouldn't be in much of a hurry either.

Mr. Muys: Well, it's true--

Unidentified Justice: You're got the water.

Mr. Muys: --We can sit there and the water can keep coming down the river and we can use it.

But it's not a sensible way to plan for the needs of 14 million people in southern California.

And that block of water is an important block of water.

We have to know whether we're going to have title to it or we're not going to have title to it.

It we're going to lose it we've got to get out and hustle and find some replacement water in northern California or somewhere.

Unidentified Justice: That water isn't all domestic use, is it?

Mr. Muys: In--

Unidentified Justice: I mean, are your clients, your water districts, aren't they serving the agricultural community?

Mr. Muys: --Not Metropolitan.

There may be some very limited agricultural use in the Metropolitan Water District.

But we're not representing the Imperial Irrigation District.

Coachella Valley Water District serves the Palm Spring areas, but they're only indirectly and contingently affected by this dispute.

Metropolitan, which serves all the urban area in southern California, is a party out of whose hide this water will come.

Unidentified Justice: So it's for domestic use, or also for commercial use too.

Mr. Muys: Yes, domestic, industrial, all the things that go into a viable urban area.

Now, we can see no policy reasons why the Thekia rule should not be extended to our case, particularly where you have same parties against whom the claim was asserted originally in Arizona against California, now the plaintiffs.

It's the same issue, what is the boundary?

We're not seeking any affirmative relief, we're not trying to go beyond what the United States asked for.

So it's just like a compulsory counter-claim.

We're just trying to resolve the issue that the Court, that the United States lay before the Court.

Unidentified Justice: But it is in different courts.

Mr. Muys: It is a different court.

But suppose the government brings a claim in the District Court and it gets transferred under 1404(a) for, to a more convenient forum, I mean, does that, does it somehow change the ballgame?

We think when they submit a matter before the federal courts, for adjudication, the fact that it ultimately may be shifted to a different forum shouldn't affect the waiver of sovereign immunity that tends putting that issue before the courts.

There are no cases to support it.

None have ever gone that far.

But we think the principle is there, and the equity is there, one no harm to the public interest, in extending the Thekia principle in the limited circumstances of this case to our suit.

Now, we think it's, there's no... the United States says, well, there's no statutory authority for that.

Well, but the United States has, the Attorney General has statutory authority to bring lawsuits.

In this, the Thekia rule is a judicially-created rule that states the consequences of bringing or intervening in a lawsuit.

So we think it's analogous to principles of ancillary and pendant jurisdiction, or considerations of wise judicial administration that this Court relied on--

Unidentified Justice: Is this your best shot on the jurisdiction in the District Court or not?

Mr. Muys: --No, no.

Our best shot is on the Quiet Title Act.

Unidentified Justice: Yes.

Mr. Muys: We win on either, we win on either one, I think.

On the Administrative Procedure Act point, Section 702 provides for judicial review of federal agency action unless another statute that grants consent to suit expressly or impliedly forbids relief which is sought.

Now, we think the Ninth Circuit's conclusion at the Quiet Title Act is such a suit is clearly wrong.

The basic purpose of the Quiet Title Act, it's legislative history, it's language, all the decisions that have construed it over the last 16 years make it clear that it only applies to a suit by a party claiming a property interest in disputed lands in which the United States also claims a property interest, and secondly, that the plaintiff is seeking to diminish or divest the United States of that ownership interest.

That's not the purpose of our suit, it can't be its effect.

Since the Quiet Title Act is limited to such particular ownership disputes, it cannot impliedly forbid our action which does not seek such relief.

Now, the genesis of the Quiet Title Act was a recommendation of the Public Land Law Review Commission in 1970 to the Congress that it waive sovereign immunity with respect to suits to quiet title in which there were claims by a private party against the United States for ownership interest.

Now, the subsequent legislative development of the Quiet Title Act focused on ownership disputes, and there's no doubt about that.

In all the cases since then, of the dozens of cases that have interpreted the Quiet Title Act none has ever applied the Quiet Title Act where the plaintiff was not seeking to diminish or divest the United States of its claimed ownership interest.

Secondly, only one case has ever applied the Quiet Title Act where the plaintiff was not also claiming a property interest in its own right in those disputed lands.

Now, in contrast to the ownership focus of the Quiet Title Act, the Public Land Law Review Commission also recommended to Congress that it provide for judicial review of adjudications, public land adjudications.

And it noted at the same time that there was then pending before the Congress the recommendation of the administrative conference of the United States that Congress enact a broad waiver of sovereign immunity that was eventually enacted as Section 702 of the APA in 1976.

That makes it clear, if you carefully analyze these two statutes, that the Quiet Title Act applies only where a private party is asserting a property interest against the United States and seeking to divest the United States of its claimed ownership interest, but does not get involved with any other statutes, whereas the Administrative Procedure Act applies in situations where there is no challenge to underlying ownership of the United States but simply a challenge as to the way the United States has administered federal laws that apply to those public lands.

Two distinct areas.

Careful analysis will show they deal with completely different things.

Now, the United States tries to blur the distinctions between the two acts in its brief.

But it's clear that they, government has recognized the distinction between the appropriate spheres of operation of the Quiet Title Act and the Administrative Procedure Act in three critical instances, as we point out in our briefs, during the legislative history of both the Quiet Title Act and Section 702.

And more recently in its briefs before this Court, in Block against North Dakota, on which they place such heavy reliance, we quote the portion of the brief which says, the APA doesn't relate to underlying boundary disputes, but of course it relates to review of agency action that violates statutory or Constitutional law.

Unidentified Justice: Mr. Muys, I suppose it's your position that the Quiet Title Act would not bar suit if you were making the opposite contention here, that is that the government, that the government gave the Indians too little land instead of too much land.

Mr. Muys: Well, we think not, because we're not trying... that would, again we wouldn't be trying to divest the United States of any of its interest.

Indeed, the result of our suit, if we prevail in the boundary, would be to enhance the United States title.

Unidentified Justice: In this case.

Mr. Muys: In this case.

Unidentified Justice: But I'm saying in another case it would be just, it would be just the opposite.

The government would be saying, we own this land in our own right and we're not holding it as trustees for the Indians.

And you're asserting that you, despite the Quiet Title Act, or somebody, perhaps the Indians--

Mr. Muys: That's right.

Unidentified Justice: --Would have the right to say no, you're only holding this land in trust for us.

Mr. Muys: That's right.

We think the APA applies when you're dealing with review of management-type decisions.

The government concededly owns the Federal lands, but they're doing something with it as far as adjusting interests that someone disagrees with.

Unidentified Justice: In each of these, in this case, or in any of these reservations, is any of the land that the Secretary included in the Indian reservations, was that, was that all federal land?

Mr. Muys: It was all public land, yes.

Unidentified Justice: All public land.

Mr. Muys: So the only result--

Unidentified Justice: No private interests.

Mr. Muys: --No private claims of any sort.

The only result of the boundary resolution will be to change the boundary--

Unidentified Justice: What kind of public land--

Mr. Muys: --Public on one side, Indian on the other.

That's all.

With all due respect, it seems to us that the government's current expansive reinterpretation of the scope of the Quiet Title Act changing the story they've told the Court in the past and they told the District Court simply reflects the desperate lengths the government is willing to go to avoid a resolution of these boundary disputes.

And why they continue to do that--

Unidentified Justice: --Mr. Muys, may I ask another question about this boundary dispute approach to the case?

Supposing a landowner owned a very large ranch or tract of land, part of which was in an Indian reservation and part was not, but he might be subject to certain Indian laws, part in the Indian reservation and not outside the reservation.

Would that party have the right to bring an action under the Quiet Title Act against the United States to determine the boundary?

Mr. Muys: --Well, we think, in a situation like that, Justice Stevens, the issue that's sought to be resolved is a jurisdictional issue, not a title issue.

Unidentified Justice: Right.

Mr. Muys: We assume that the private owner owns a large ranch and he just wants to know where the Indian reservation boundary is so he knows whether federal law, whether he's going to be subject to tribal law, let's say--

Unidentified Justice: Right.

Mr. Muys: --In part of his ranch, or state law in the rest of it, that's a jurisdictional dispute, that's not a title question.

And I think that's where the Ninth Circuit went astray.

One of the cases that the government relies on is Fadem against the United States, another Ninth Circuit decision.

In that case, in a not-carefully considered dictum, the Ninth Circuit said, all boundary disputes with the government are governed by the Quiet Title Act.

Well, that's just not so.

There are a lot of jurisdictional--

Unidentified Justice: But you would say in that... I want to understand what you were explaining.

In that case you would say, say the Department of Interior just moved the boundary or something, that the private party could get review under 702?

Mr. Muys: --We think they get review under 702, yes.

They'd be reviewing the action of the Secretary in making a boundary determination that established different spheres of jurisdiction on that--

Unidentified Justice: Well, if it weren't for the Quiet Title Act there would be no question that you could get in the court on the APA.

Mr. Muys: --Well, we think so, yes.

Unidentified Justice: Well isn't, the APA... the United States doesn't claim any, otherwise, Isn't it just the Quiet Title Act?

Mr. Muys: Well, they claim we can't get in under the APA because the Quiet Title Act is another statute that--

Unidentified Justice: I understand, I understand.

But if it weren't for that acts there would be APA jurisdiction.

Mr. Muys: --They haven't... it's implied from their briefs, they say, they say treating our suit as a water rights suit that the Quiet Title Act aside that maybe we couldn't get in because they think the McCarran Amendment--

Unidentified Justice: But you think it's still a jurisdictional argument if they, at one point they said the Quiet Title Act didn't interfere with APA jurisdiction?

Mr. Muys: --Yes.

Unidentified Justice: Now they interpret the Quiet Title Act differently.

Mr. Muys: Yes.

Unidentified Justice: And that is a jurisdictional issue.

Mr. Muys: Yes.

Unidentified Justice: Well, what if under Justice Stevens' hypothesis the Secretary had delineated the Indian reservation boundary 40 years ago, do you think you could come in under the APA now and say that was wrong?

Mr. Muys: Well, I don't know.

I haven't found cases applying a statute of limitations to APA review.

Unidentified Justice: --It sounds as if, it does have a contemporary flavor to it.

Mr. Muys: It does, it does.

But there's no statute of limitations.

Most public land decisions, by the Secretary, are only subject to a laches defense.

If you wait too long--

Unidentified Justice: But you're talking to the court as soon as you could, I take it.

Mr. Muys: --Yes, we, we tried to get in here and we've tried, we've tried several different forums.

Unidentified Justice: Why do you say this is just a jurisdictional dispute, not a title dispute?

If, couldn't you bring a Quiet Title Act action under state law for a declaration that you hold a piece of property outright rather than you hold it in trust?

Isn't, I mean... whether you hold it outright or in trust, isn't that a significant issue of title?

Mr. Muys: Well, not to the underlying title.

I think if the plaintiff were claiming some kind of interest, that it held, it was entitled to hold the land in some status, I think it would be a Quiet Title Act action.

But when the plaintiff is not seeking title, not seeking the quiet title in itself--

Unidentified Justice: It doesn't make any difference who the plaintiff is.

The issue is whether the United States owns it outright or holds it in trust.

And that's not a title issue?

Mr. Muys: --Well, I don't think, it's no more a title issue than whether, when the United States grants a lease or right-of-way, or some other kind of federal privilege, it adjusts its ownership interest.

But the underlying ownership interest of the United States holding this land in fee title is not affected by our claim.

We think that's the only kind of case the Quiet Title Act applies to.

Now, it's easy to say, well, there's some dispute about what the respective interests are in the surface, and that's a quiet title issue.

But I think that's a very loose kind of characterization of quiet title.

Unidentified Justice: Do you know any state cases about bringing suit to quiet title as to whether you hold equitable or legal title?

I'd be surprised if that isn't a proper Quiet Title Act.

Mr. Muys: Well, to bring a suit as to whether the plaintiff holds equitable or legal title, but I think, you know, if a... a quiet title action has to have all the effective parties in there.

And I don't think a third party could come in off the street and raise that issue without having some serious standing problems, which we have avoided because it's basically a water rights issue.

I'd like to reserve the balance of my time.

Chief Justice William H. Rehnquist: Thank you, Mr. Muys.

Mr. Kneedler, we'll hear now from you.

ORAL ARGUMENT OF EDWIN S. KNEEDLER ON BEHALF OF THE FEDERAL RESPONDENTS

Mr. Kneedler: Thank you, Mr. Chief Justice, and may it please the Court:

I think it's important at the outset to make clear the nature and consequences of the lawsuit that petitioners, or that MWD in particular, has brought against the United States here.

They seek an order to, a judicial order, setting aside the Secretary's determination of the proper boundary of the Indian reservation, and secondly request the Court to go ahead and decide de novo where the proper boundary of the reservation is.

The effect of determining where the boundary is is to determine whether the land within the boundary is held in trust by the United States for the benefit of the Indians.

As a result, the consequence of this lawsuit with respect to the land at issue would be to affect both the United States' title and the tribe's title.

The United States' title would be changed from fee simple... I mean, excuse me... from holding the land in trust for the tribe to fee simply absolute, and the tribes equitable interest in the land would be altogether extinguished, which would greatly disrupt the relationship between the United States and the tribe, which--

Unidentified Justice: Mr. Kneedler, do you think the position the government is taking now is consistent with the position that the government took in oral argument of the Arizona against California II in 1983?

Mr. Kneedler: --Yes I, yes I do.

Mr. Claiborne in the oral argument in that case, when questioned about the pending motion to dismiss in the District Court, noted that that had been, that there was a motion to dismiss that raised sovereign immunity defense, and he, there's some, I think, ambiguity in his response.

Whether it's correctly transcribed or not is unclear.

But the page of the oral argument transcript that is reproduced in an appendix to the brief makes it pretty clear that Mr. Claiborne was contemplating that these issues, and particularly here sovereign immunity, would be litigated in the District Court, and would be subject to appellate review.

And that was apparently this Court's understanding because they did not, the Court's opinion in Arizona against California did not take the United States to have conceded the absence of, or the presence of jurisdiction in the District Court.

And in fact the Court's opinion went on to acknowledge that the question of sovereign immunity among others would be litigated and subject to appellate review in the normal course.

So our view is we think not inconsistent with what Mr. Claiborne said at oral argument.

On the further question of the nature of this lawsuit, Petitioners concede that they have brought this lawsuit solely to determine water rights, not because of the nature of the land for its own sake.

And in fact they wouldn't have Article 3 standing to bring this suit for a determination of the status of the land because they claim no interest in the land itself.

As to the water rights, the effect would be rather dramatic.

What they seek is to divest the United States of its legal title, and the tribe of its equitable title, to the reserved water right that both claim was reserved by the United States when the land was set aside for the benefit of the Indians.

And finally it isn't true in this case that Petitioners seek nothing for themselves in the nature of a property right.

They have brought this suit only because the effect of recognition of the reserved water right for the United States for these 3,500 acres on the Fort Mojave Reservation would be to subordinate their own, MWD's own water rights for the Indian... I mean for, under their contract with the Secretary of the Interior.

Unidentified Justice: You say a water right is a property right.

Mr. Kneedler: A water right, their water right is a property right.

And in fact the most important element of a water right, and their water right in particular, is its priority.

And so moving MWD's water right to a higher priority and moving the United States' water rights to the reservation to a lower priority very definitely transfers a property right from the United States to MWD in this case.

Unidentified Justice: Well, Mr. Kneedler, the government took a different position initially, didn't it, in the District Court?

Mr. Kneedler: Yes.

In the District Court we did, in the United States, when the United States withdrew the motion to dismiss in District Court it said that, if only a boundary determination, and not title, is implicated, the Quiet Title Act implied bar under the APA is inapplicable.

That was... if that were true perhaps that would be a correct statement.

The fact of the matter is it simply, in this case it simply isn't true that title is implicated, because the--

Unidentified Justice: Well, what changed?

Did the lawyers change?

I mean, something happened between the District Court and the Ninth Circuit.

Mr. Kneedler: --Well, a number of things, a number of things happened, a number of things led us to--

Unidentified Justice: The government lost the case.

Mr. Kneedler: --No, well, that happened chronologically.

But what led us to re-examine this were really three separate and we think important factors.

First of all, the United States holds this land in trust for the Indian tribe.

And in those circumstances it is important that the United States make sure that everything is done right, so that the question of title will be adjudicated properly in the proper forum, and in a way that no questions will be asked.

Secondly, if the question of jurisdiction had not been litigated there would have been a real question as to whether any judgment in that case would be binding as a matter of res judicata, because a judgment entered by a court that does not have subject matter jurisdiction may be collaterally attacked.

That wasn't speculative here, because the very purpose of MWD bringing this lawsuit was to take the judgment in this case and use it in finally resolving the water rights dispute in Arizona against California.

We wanted to make sure by actually litigating the question of jurisdiction that that question would be put to rest.

Far from being dilatory on the question, we wanted to get that question resolved, so we would know where to proceed.

And in fact the purpose of taking an interlocutory appeal was to resolve it--

Unidentified Justice: Well, where do you think this should proceed?

It should be resolved.

Where should it be resolved?

Mr. Kneedler: --Well, our position in the past has been, and continues to be, that, that the boundary dispute, as Petitioners claim, and as we have said from the beginning, is an essential element of a water rights adjudication.

And if the water rights are to be adjudicated in this Court in all other respects, we would submit that the element of the cause of action for a water right, whether the land is reserved, should also be adjudicated in Arizona against California in this Court.

And in fact that was the position of the United States in Arizona against California I, and in Arizona against California II we came into this Court and sought recognition of the boundaries.

Unidentified Justice: Well, yes, but your claim, your claim has been that the Secretary's ruling should be accepted as a final determination.

Mr. Kneedler: That was our position in Arizona against California II.

It was not the first time.

The second time it was and the court rejected that.

We're no longer, we're no longer maintaining that the Secretary's determination--

Unidentified Justice: So you, so you... if you prevail in this case, and the case cannot be adjudicated, you think Arizona against California has to be re-opened.

It's going to have to be re-opened anyway.

Mr. Kneedler: --It's going to have to be re-opened anyway to incorporate the final determination.

And our view is that--

Unidentified Justice: But there won't be... if you win there won't be a final determination, any kind of a determination in this case.

Mr. Kneedler: --Yes, in the case in District Court, that's correct.

But the boundary determination then would be subject to whatever review this Court determines is appropriate in Arizona against California.

Unidentified Justice: And I suppose the United States would then petition this Court to re-open.

Mr. Kneedler: After we see the Court's opinion, we would obviously move to do that and consider that right away, because we do not have an interest in delaying the Court's resolution of this.

Unidentified Justice: Well, if the government didn't petition to re-open, I suppose one of the states could.

Mr. Kneedler: I think that's probably right.

The United States, having asked for a determination of its water rights, and having moved before, I think it would be within the power of the other parties to request a final resolution of the water dispute that we presented to the Court on the tribe's behalf.

Now, it is our view that because the Petitioners lawsuit so intimately affects property rights in the ways that we've described, that it is really the subject of special statutes that Congress has passed to govern the adjudication of property interests of the United States--

Unidentified Justice: Let me ask at that point, Mr. Kneedler, you say that the water right is a property right, which certainly seems sensible.

You contend it's an interest in real property within the meaning of the Quiet Title Act?

Mr. Kneedler: --Yes.

I think it is, because the concluding portion of that first sentence in Subsection A says, other than an interest in water rights, which certainly contemplates that out for the water rights exception, water rights would be included within the general subject of interest in real property in which the United States claims an interest.

And the reason for the exception for water rights in the Quiet Title Act, as we've explained in our briefs, is the Congress had already provided a special mechanism for the adjudication of water rights in which the United States claims an interest, and that's the so-called McCarran Amendment.

Unidentified Justice: Yes, but that's for a whole river system.

Mr. Kneedler: Yes, and Congress determined that it would only waive the immunity of the United States to suit involving water rights when there was a general stream adjudication, and for very good reasons.

Because if the United States were subject to piecemeal adjudication by every competing water user on the stream, it could be subject to a whole series of lawsuits, and the judgment in the first one wouldn't bind the parties to the second.

And Congress determined that the United States should be put to the task of defending its water rights only when all the users on the stream would be involved.

In this case, this is in no sense a general stream adjudication, as the Court held in Dugan v. Rank, was required.

And the legislative history of both the Quiet Title Act and the Administrative Procedure Act that we set forth in pages 28 to 29 of our brief makes clear that Congress understood what it enacted both statutes that the McCarran Amendment was the existing procedure for the adjudication of water rights.

And because the McCarran Amendment does not permit an individual water user, such as MWD, to bring a suit to quiet title on water rights, it fails within the exception to the APA for another statute that grants consent to suit for McCarran Amendment but impliedly forbids the relief that is sought in this case, an adjudication of water rights as between the United States and only one claimant.

So we think that as to the water rights aspect of it, that the McCarran Amendment itself bars it, and beyond that the Quiet Title Act creates an exception for water rights because of this pre-existing scheme for adjudication of water rights, and that the express exception in the Quiet Title Act for suits involving water rights leads to the conclusion that the waiver of sovereign immunity to APA simply doesn't permit a court to adjudicate this suit, because the relief that it sought, a determination of title to water rights, is expressly barred by the Quiet Title Act.

So as to the water rights aspect of this case, which Petitioners concede is the central nature of this lawsuit, the water rights, adjudication of water rights is barred not once but twice by independent suits.

And precisely the sort of pre-existing self-contained statutory regimes that Congress had in mind when it enacted the APA amendments in 1976 and included this exception for other statutes that grant consent to suit.

I would finally like to point out that although Petitioner asserts in its reply brief that we did not raise the water rights exception below, in pages 16 to 18 of our reply brief, in the Court of Appeals, we did in fact raise the water rights, address the water rights exception, precisely because, there as here, they argued that this is a suit about water rights.

And in response to that we said, okay, if that's so then it's expressly barred by the water rights exception to the Quiet Title Act.

Unidentified Justice: Have you taken a position on the case or controversies suggestion of the Court of Appeals?

Do you agree there's a case or controversy?

Mr. Kneedler: In the Article 3?

Yes, I think there's an Article 3 case or controversy in the sense that Congress certainly could confer jurisdiction over suit such as this.

I think the Court of Appeals' problem was that to the extent that this, that Petitioners were characterizing their suit as a dispute about who owns the land, they had no interest in the land, and therefore were not, were not proper parties to such a suit.

And in fact this Court's decisions in Cragin v. Powell and Lane v. Darlington, that we cite in our brief, are situations where the Court held that a party, a third party, has no interest, no cognizable interest, in a boundary determination done for internal purposes by the executive department.

Unidentified Justice: Well, if the only basis for standing is water rights, this has to be a water rights suit.

Right?

Mr. Kneedler: That's correct.

Unidentified Justice: You can't litigate a suit on the basis of something that doesn't represent your standing.

Mr. Kneedler: That's right.

And because that has to be the basis of the--

Unidentified Justice: So the Quiet Title Act is just out of it.

The water rights exception to the Quiet Title Act applies, and really the only thing we should consider is the McCarran Amendment.

Mr. Kneedler: --That's correct.

And the McCarran Amendment itself consents to suit only where there's a general stream adjudication.

And the Justice Department which proposed the Quiet Title Act and the water rights exception to the Quiet Title Act specifically pointed out, in the 1972 Quiet Title Act hearings, there's already an existing regime, that's the McCarran Amendment.

We don't want to disturb that existing regime, which required a general stream adjudication, and therefore the suit is barred.

But we do think the express exception of the Quiet Title Act also bars the suit--

Unidentified Justice: But the Quiet Title Act aside, the question is a relationship between the Administrative Procedure Act and the McCarran Act.

Mr. Kneedler: --That's correct.

Unidentified Justice: Whether that McCarran Act is the statute that takes the case out of the APA.

Mr. Kneedler: That's correct.

And on that point the legislative history of the APA is also quite informative on that question.

Because as we point out on page 28 of our brief, the administrative conference, which proposed the amendments that were eventually enacted in 1976 to Section 702 pointed out that special statutory schemes, such as the Tucker Act which permits certain remedies but not another, and another one in particular that was mentioned was special statutory regimes concerning water rights, will retain the same preclusive effect as they have now.

And this Court had already held, prior to that time, in Dugan v. Rank, that only a general stream adjudication is one within the United States waiver of sovereign immunity.

Any other suit was already precluded by Dugan v. Rank and the McCarran Amendment.

So the legislative history of the APA makes it clear that the special statutory regime for water rights in particular retained the same preclusive effect as it had before.

And so we think that both the Quiet Title Act and the APA make clear that the water rights exception, or water rights can't be adjudicated.

Unidentified Justice: And is the purport of that remark that the McCarran Act would authorize this determination in the confines of the original suit?

Mr. Kneedler: The McCarran Amendment itself would not apply to the original action, although the United States, having intervened, would allow the adjudication there, but the last provision, the last section of the McCarran Amendment says that nothing in that statute grants consent of the United States to be sued for adjudication of interstate water systems.

So it wouldn't apply.

Unidentified Justice: Mr. Kneedler, do we have in the record a piece of paper where you withdrew your sovereign immunity?

Is there a piece... was that just oral or--

Mr. Kneedler: No, no.

There was a motion, there was a withdrawal, there was a piece of paper in the District Court that is quoted--

Unidentified Justice: --And then a piece of paper reasserting it?

Mr. Kneedler: --Yes.

We, we, we adverted to this in our petition to have the Court of Appeals accept the interlocutory appeal, and then we asserted it fully in our brief on the interlocutory appeal.

Unidentified Justice: But you never did assert that in the District Court?

Mr. Kneedler: We did not, no.

And that question was re-examined in connection with the entire appeal.

Unidentified Justice: Mr. Kneedler, may I ask you in that connection, because you explained the reasons for the change of position, had you not changed your position, had let the case go to judgment, your position today would be that you could collaterally attack that judgment?

Mr. Kneedler: That's correct.

Unidentified Justice: Yes.

Mr. Kneedler: And we thought that had to be resolved.

And one last point I wanted to make is another ingredient in our re-examination was the Mottaz decision where, in that case the plaintiff was not seeking to change who held legal title.

If the plaintiff had prevailed in Mottaz, United States would have still held legal title, albeit in trust for the individual Indian.

And so that was a case where the title was, the legal title would remain in the United States, and Mottaz therefore was an additional consideration in the Court's application of the Indian lands exception, and Mottaz was an important consideration.

Unidentified Justice: May I also ask you the question I asked your opponent about a private owner who owned land that was partially within a reservation and partially outside, wanted review of a recent administrative decision changing the boundary to a reservation because of interest in what law would apply to portions of his property.

Would you say that was subject to review under 702?

Mr. Kneedler: Well, certainly the Quiet Title Act wouldn't be the preclusion because there wouldn't be a suit about adjudication of title.

Now whether there would be some other bar under the APA would be a different question.

Unidentified Justice: At least the Quiet Title Act--

Mr. Kneedler: At least the Quiet Title Act wouldn't.

One other point I wanted to make about the Quiet--

Unidentified Justice: --Excuse me.

That wouldn't be a suit about title, if it goes to who has equitable title?

Only suits that have legal--

Mr. Kneedler: --As I understood Justice Stevens' question, it did not go to the question of title.

It would be conceded that the former, or the landowner, owns the land, it's just whether it's within the political jurisdiction, or political boundaries of the reservation.

Unidentified Justice: --Which depends upon who has equitable title.

Mr. Kneedler: No, not necessarily.

There can be non-Indian inholdings within the boundaries of an Indian reservation.

Unidentified Justice: I see.

Mr. Kneedler: And incidentally, there are four non-Indian inholdings within the disputed 3,500-acre tract in this case.

And those landowners would have a right to bring an action under the Quiet Title Act.

But Petitioner, Petitioner claims because does not, because they're not seeking title, this suit isn't addressed by the Quiet Title Act, and therefore they should be permitted to bring it under the APA.

Precisely the opposite conclusion should be drawn from the fact that they're not claiming title, because if Congress intended the Indian lands exception to prevent even a claimant to the land in question to bring a suit that would disrupt the United States relationship with the Indians, then a fortiori Congress must have intended to preclude a suit by a stranger to the land dispute from bringing an action that would affect, really being an inter-meddler, affect the interests of the United States and the Indian tribe.

And there's no reason to think that Congress expected that, and in fact Congress deliberately confined the Quiet Title Act to suits brought by people who are themselves claiming an interest in the land.

And that is made clear by the provision of the Quiet Title Act that requires the plaintiff to set forth with particularity the nature of the interest he claims in the land.

Because not just as Indian lands, but with respect to lands generally, Congress did not want the United States title to be adjudicated by people who weren't themselves claiming competing title in the land.

Finally, with respect to the argument that the United States waived its immunity by intervening in Arizona against California, Petitioners concede there's no authority for that, and in fact the rationale of the Thekla rule upon which they rely suggests that there shouldn't be an extension of that rationale.

Thekla involved resolving all aspects of a single case in the same court to resolve the same controversy.

They are in fact seeking to split off one element of the cause of action and bring it in another court.

That's not only inconsistent with the rationale of Thekla, but it's also inconsistent with the policy of Congress in this Court to have comprehensive adjudication of water rights.

Unidentified Justice: Mr. Kneedler, would that waiver be subject to revocation by the government, the waiver in the original action?

Mr. Kneedler: I think not.

It's technically not a waiver of sovereign immunity, it's an affirmative presentation of the United States' claims.

Unidentified Justice: But why couldn't the United States change its position in that case also?

Mr. Kneedler: Well, perhaps if the United States sought to dismiss its claim, filed a complaint and then sought to dismiss it, then I assume that would be a withdrawal of the waiver.

But as long as the United States is seeking to have the claim adjudicated--

Unidentified Justice: Do we have any guarantee the United States won't change its position again, is what I'm really asking?

Mr. Kneedler: --If the claim is presented in Arizona against California, yes.

If this is represented to the Court in Arizona against California, we would intend to go forward there.

And that has always been our position.

Unidentified Justice: You would, but what if your successor in office, by the time it gets us, has a different view?

Mr. Kneedler: Well, if the successor in office were to dismiss the United States complaint in Arizona v. California, then whether that would waive the, or whether the Court could proceed to adjudication would be a different question.

But the United States has never sought to do that, and continually has thought that at least this Court was the proper forum for adjudication of these disputes.

That was our position back in 1961.

Unidentified Justice: Thank you, Mr. Kneedler.

Mr. White, we'll hear now from you.

ORAL ARGUMENT OF DALE T. WHITE ON BEHALF OF THE TRIBAL RESPONDENTS

Mr. White: Mr. Chief Justice, and may it please the Court:

The tribes urge dismissal of this action based upon the United States' sovereign immunity.

It's important to understand the effect of this dismissal.

Dismissal will not affect or deprive the Petitioners of their right to judicial review with respect to their specific interest and concern in this case.

As the Petitioners have repeatedly asserted, their sole concern in this case is with their water allocation in Arizona v. California.

Petitioners are protected in their right to review of that interest, because this Court in 1983 stated very clearly that before the water rights of the tribes are increased, based upon additional boundary acreage, that the Petitioners will have their day in court.

So the tribes' position is not that the Petitioners are being deprived of their, that dismissal will deprive the Petitioners of their judicial review of the boundary orders.

What we're saying is that this particular action cannot go forward, and this particular action cannot be the forum for that review.

Unidentified Justice: I'm curious why, is it because you lost in the District Court that you want another shot at it?

Or what?

You... I don't know why you would, at the outset necessarily, prefer having the issue resolved here than in the District Court.

Mr. White: Well, there are a couple of responses to that.

The first is Mr. Kneedler has stated that we realized that there was an Indian lands exception Quiet Title Act sovereign immunity defense that might have prevented the Court from having jurisdiction, does prevent the Court from having jurisdiction.

And we did not want to have a judgment in the District Court that has no good.

And secondly, we realized that Petitioners' real interest in this case is their water rights, and that we're having scope of review and procedural problems in the District Court because of that problem.

They were litigating a water rights issue, their water rights claim in the District Court, but the lawsuit was challenging the tribes' title.

Now, the proper forum for that is where the parties are claiming the water rights, and that's in Arizona v. California.

The action is... the District Court is not the forum for resolution of the boundary issues because it's barred by the Indian lands exception to the Quiet Title Act.

As this Court is aware from its previous decisions in Block v. North Dakota, and United States v. Mottaz, the Indian lands exception insulates trust or restricted Indian lands from challenges by third parties.

Congress, in the Quiet Title Act, lifted its sovereign immunity generally for claims against the United States for public Federal lands.

But Congress in the Indian lands exception made a conscious decision to retain its immunity for trust or restricted Indian lands.

And it made that decision based upon the specific commitments and the solemn obligations of the United States to protect Indian lands from challenges.

It was based upon the United States trust responsibility towards Indians to protect their lands, and it was based upon a recognition that over the course of history Indians had lost a great deal of their traditional historic lands.

And Congress included that provision because it did not want Indian lands to be subject to any further challenges.

The Indian lands exception is invoked when the United States holds lands in trust and claims them on behalf of Indians.

There's no requirement, as the Petitioners have asserted in this case, that the United States must prove that its claim is substantial before the exception is invoked.

That requirement would be at odds with and undermine the Indian lands exception purpose, and the purpose behind sovereign immunity.

The purpose behind the doctrine of immunity is to prevent examination of the merits of the government's claim.

Unidentified Justice: Is the government's position as to the exact location of the boundaries different now than it was back in the 1960s?

Mr. White: The government has consistently taken the position that the, with respect to the hay and wood reserve boundary of Fort Mojave reservation, that it is 9,114 acres.

The United States presented evidence in the, before Special Master Rifkin, that it was a 9,000-acre reserve--

Unidentified Justice: Yes, well, the government lost that, before the Special Master.

Mr. White: --Because Special Master Rifkin decided that the government survey that was inconsistent with its litigating position--

Unidentified Justice: We decided then that... we didn't think it was necessary to decide the issue at that time.

Mr. White: --That's right, because--

Unidentified Justice: And then we did it again in 1983.

Mr. White: --Well, the Court decided in Arizona v. California I that it would not decide it.

Parties had objected because of the possibility of deciding title questions.

In Arizona v. California II the Court did not accept the United States' Secretarial order standing along as ex parte orders.

The United States is not saying that, and the tribes are not saying that.

Unidentified Justice: But as far as the actual amount of land involved, the government's position is the same, and the tribes' position is the same as it was in the 1960s?

Mr. White: For Fort Mojave reservation and for the Colorado River--

Unidentified Justice: But there have been some new things come up from other reservations, haven't there?

Mr. White: --Only these three reservations are involved in these boundary issues.

I should say that for the Fort Yuma reservation, the original position of the United States has changed because the order, the order of the, re-establishing the reservation boundaries was issued in 1978.

But the other reservations are the same.

The present action falls within the protection of the Indian lands exception.

The lands are held in trust and claimed on behalf of the tribes.

There's no dispute with that fact.

The Petitioners concede that the current status of the lands are trust lands and they're claimed by the United States.

The Petitioners' action seeks an adjudication of that claim, it seeks to challenge the reservation boundaries.

And that takes the form of two requests for relief.

The Petitioners seek to vacate the Secretarial orders.

That in itself will shift the reservation boundaries and reduce the total acreage of the reservations by over 30,000 acres in total.

And we know what the impact of that is at the Fort Mojave reservation.

In 1986, the District Court vacated the hay and wood order, which severed 3,500 acres from the Fort Mojave reservation.

But in addition to that, it's important to understand that the Petitioners also seek to go further than that.

They seek in their complaint a judicial determination and declaration of the reservation boundaries.

Now, that determination will involve the District Court hearing all of the evidence that is customary and typical in a quiet title action.

Testimony of surveyors, testimony of historians, consideration of title records, title documents, all directed at the question of whether the tribes are entitled to continue to hold and own those lands.

That is clearly an adjudication of title, and that form of relief is exactly the type of relief that Congress meant to prevent in the Indian lands exception.

The Petitioners have not advanced any valid arguments why the Indian lands exception should not apply.

They say that they don't seek title in their own name, but that argument and the reading of that statute in that way is inconsistent with the Indian lands exception.

Congress' purpose in the exception was to prevent loss of Indian lands.

Congress was not concerned with who the parties who were challenging the land were, it was concerned with preventing loss of Indian lands.

It doesn't make any sense to say that a party with a lesser interest, such as the Petitioners, are entitled to challenge Indian lands.

And it also doesn't make any difference that the lands would still be held by the United States as BLM public lands.

The fact is that the essential character of the lands would be completely altered if Petitioners succeed.

The United States would be divested of its, of its legal interest in the property, the tribes would be stripped entirely of their equitable interest in the property.

And finally, the Petitioners cannot utilize the waiver in Section 702 of the APA to avoid the Indian lands exception.

Unidentified Justice: Are you saying that the titled Indian lands can't even come up collaterally in some other suit?

What if there's a criminal prosecution for an offense allegedly committed on Indian lands?

Could not the defendant challenge what the boundary of the Indian lands was?

Mr. White: Those cases, I believe you're referring to the disestablishment cases, come up somewhat frequently, and the Court has had occasion to resolve those.

Those are usually brought, not against the United States, but they're brought in habeas corpus action.

And those are the types of issues that do not concern title, they concern political jurisdiction.

And we're not saying that those actions cannot be brought.

They're not usually brought against the United States.

Unidentified Justice: They're not against the United States.

Mr. White: That's right.

Unidentified Justice: Thank you, Mr. White.

Mr. White: Thank you.

Unidentified Justice: Mr. Muys, you have four minutes remaining.

REBUTTAL ARGUMENT OF JEROME C. MUYS ON BEHALF OF THE PETITIONERS

Mr. Muys: Thank you, Mr. Chief Justice.

Just dealing with the McCarran Act issue for a moment, the United States wants the Court to give the same effect to the McCarran Amendment that it gave to the Quiet Title Act as being the exclusive means of having any kind of adjudication on water rights.

In other words, it wants the Court to say, the McCarran Amendment has preempted the field, there's no other way you can test a federal agency action that may just affect water rights short of a whole general stream adjudication.

We think that that argument has to overcome at least three decisions of this Court.

In Dugan against Rank, where private water rights owners challenged the operation of the Central Valley project, the Court said the McCarran Amendment wasn't applicable, but they applied the officer suit test to see whether the suit against the officials was appropriate, unlike block against North Dakota where the Court said that there's no room for an officer suit in light of the Quiet Title Act.

So at least in Dugan against Rank, the Court seemed to feel that the McCarran Amendment had not completely preempted the field.

Unidentified Justice: But Dugan was before the enactment of Quiet Title Act, wasn't it?

Mr. Muys: Yes.

And before the APA waiver.

But at least they recognized that there was another means of getting at federal officials interfering with water rights.

And then in the Colorado River Conservation District Number One against United States in 1976 and Arizona against San Carlos Apache tribes in 1983, the Court said that the McCarran Amendment was not the exclusive vehicle for testing water rights.

Those cases turned on jurisdictional issues, whether the United States and Indian tribes could bring water right actions in the federal district court, even though there might be a general stream adjudication under the McCarran Act, either going on or threatened.

And so it seemed to us that there's certainly an implication in those cases, again, that the McCarran Act had not preempted the field of all water rights actions.

It preempts the field on general stream adjudications, but there's still leeway.

Unidentified Justice: Well, maybe all we meant was that there are other ways to test water rights without suing the United States.

Mr. Muys: Well--

Unidentified Justice: I mean, we're just talking here about a preclusion of suit against the United States.

Mr. Muys: --Well, the Indian claims, though, in Arizona against San Carlos Apache, were claims brought in the federal district court against the United States and all other water users, because many times the United States has water rights on behalf of other federal agencies that are inconsistent with Indian claims.

So I'm quite sure, in San Carlos Apache, the suit involved claims by the tribes against the United States.

No problems were suggested about a lack of waiver of sovereign immunity.

So we think that the McCarran Act does not fit the mold of the Quiet Title Act, as interpreted in Block against North Dakota.

We suggested the Ninth Circuit could squeeze our case under the McCarran Amendment because it was as comprehensive an action as is possible.

This Court had already done a general stream adjudication on the lower Colorado River in Arizona against California I, was still retaining complete jurisdiction over all the water rights on the river.

All that were left were the three unadjudicated boundary disputes on the three reservations.

So, as this Court said in the Eagle County case, the McCarran Amendment should not be interpreted inflexibly and narrowly.